Can I be fired because of coronavirus? Frequently asked COVID-19 employment law questions

Can I be fired because of coronavirus? Parents looking ahead
to 3 weeks of public-school or daycare cancellations may be wondering about
their options. Employees who test positive for the coronavirus or have been
directed to self-isolate because of their symptoms or travel may be facing 2
weeks or more off work. Even healthy folks without children have questions as
more businesses direct employees to work from home or take time off to avoid
COVID-19.

LAST UPDATED 26 MARCH 2020.Laws are changing rapidly in response to COVID-19. Please be sure to get the most current available information from a reliable source and seek legal advice if you are unsure of your rights.

Here are the answers to some Frequently Asked Questions
about employee rights and employer obligations during coronavirus.

LEGALEASE

Please note, this is general information and not legal
advice.

While we encourage you to read this post and the links we’ve
included to trusted resources, each workplace and each worker is different. At
the same time, governments have been announcing new measures regularly so some
of this information may change. If you have specific concerns about your
workplace, please contact an employment lawyer or your union as soon as
possible. If you work outside of Ontario, please consult resources specific to
your province or territory.

Of course, employees or employers with concerns about staying healthy or keeping their employees and customers safe should seek information from doctors, nurses and scientists, not lawyers! Please consult your family doctor, specialist, Hamilton Public Health or Public Health Ontario.

UPDATE: What does a declared emergency mean for employees?

On March 17, 2020, Premier Ford declared an emergency under the Emergency Management and Civil Protection Act. This entitles employees who cannot perform their duties because of orders under the Emergency Management and Civil Protection Act to an unpaid leave of absence. This can include things like orders that certain businesses, offices, schools or other facilities close or that travel be restricted. During a declared emergency, employees subject to orders under the Health Protection and Promotion Act are also entitled to an unpaid leave of absence if that order and the emergency means they can’t perform their duties. For example, if you’re ordered to self-isolate and can’t work. This job protection extends to employees who need to provide care to their close relatives or dependents because of the declared emergency. For example, if your child’s school closes because of the emergency and you need to stay home with them.

At this time, the government is ordering that recreation centres, public libraries, private schools, day cares, bars, restaurants, theatres, concert venues and cinemas close immediately and stay closed until March 31. Al public gatherings of 50 people or more are prohibited at this time.

Orders like this can last a maximum of 14 days. It can then be extended an additional 14 days. After that time, an emergency can be extended only by a vote of the legislature. You can find out more about the declaration here here.

As part of these emergency measures, the Ontario government amended the Employment Standards Act to add new protections for employees who are sick with COVID-19, ordered to self-isolate, or have new childcare/eldercare obligations because of the declared emergency. We’ve edited this post to reflect these changes. We’ve also added a more detailed post about those changes here.

How many sick days do employees get?

Provincially regulated employees in Ontario are entitled to a minimum of 3 unpaid sick days. To be eligible employees need to have worked for their employer for at least 2 weeks. Normally, your employer can demand proof that you needed those days off, such as a doctor’s note. This obligation has been suspended for COVID-19 sick days. You can find out more about sick leave minimums here.

Employees may have additional sick day rights under their
employment contract, collective agreement or workplace policies. Some employers
are changing their rules (at least temporarily) to respond to concerns about
the spread of coronavirus. If you are unsure whether you have additional sick
days, consult your contract, your employee manual, recent notices from your
employer and consider calling an employment lawyer or your union.

Update: Emergency amendments to the Employment Standards Act permit employees to take COVID-19 related leaves without supplying a doctor’s note. Instead, employers can ask for proof that is reasonable in the circumstances. What this will look like will vary, so employees should keep whatever records are available to them. These emergency amendments also extend job-protection for employees sick with COVID-19 retroactively to 25 January 2020. See our more detailed post on these new rules on covid 19 leaves here.

Can I take sick days if my child is sick?

Yes. Provincially regulated employees in Ontario are entitled to a minimum of 3 unpaid family responsibility leave days to provide care for a sick family member or provide care to family members relating to other “urgent matters”. This includes care for:

Your child, including your step-child, foster
child or spouse’s child

Your spouse

Your parent, step-parent, foster parent or your
parents-in-law

Your grandparent, step-grandparent or spouse’s
grandparent

Your grandchild, step-grandchild or spouse’s
grand child

Your child’s spouse

Your sibling

Any other relative who depends on you for care
and assistance

Your employer can demand reasonable proof that you needed this time off. As with sick days, in normal circumstances this might include asking for a doctor’s note.

Update: Recent amendments to the Employment Standards Act expressly protect parents who need to miss work because of the COVID-19 school and daycare closures. Employers cannot demand a doctor’s note when granting these leaves, but they can demand reasonable proof. See our more detailed post on these new rules on covid 19 leaves here.

What if I get COVID-19? What if some one in my family has COVID-19?

For many people, COVID-19 is not life threatening and does not involve serious complications. However, if you or your family member have COVID-19 and experience serious or life-threatening symptoms or complications, the Employment Standards Act may offer you additional basic protections. Workers with serious illness or who are caring for children (or other family members) with serious illness may be eligible for one or more of the following job-protected unpaid leaves from work:

In the very unlikely event of a loss of life in your family due to COVID-19, these leaves end at the end of the relevant week. You would be entitled to 2 days of bereavement leave and, in the event of a death of a child, employees with more than 6 months of service would be entitled to child death leave.

Can an employee take sick days if their child’s school or day care is cancelled due to coronavirus?

Yes, sort of. An employee would likely be entitled to a minimum of 3 unpaid family responsibility days.

In addition the minimum standards, employment contracts,
collective agreements or workplace policies may offer additional days for these
types of emergencies.

If your contracts or policies do not address days off, the Ontario Human Rights Code still requires employers to reasonably accommodate true childcare needs to the point of undue hardship. What is reasonable accommodation to the point of undue hardship will depend on employee needs and the workplace. For example, it may not be a reasonable accommodation to let an employee take 3 weeks off with pay because their 16 year old is off school, but it may be a reasonable accommodation to let an employee work from home part time for 3 weeks while their 5 year old is off school. Something may be an undue hardship for a small business which is not an undue hardship for a large corporation. The law protects an employees’ legal obligations as parents, not their preferences, and requires employees to do a lot of the heavy lifting to seek out alternatives before an employer is obliged to make changes at work.

You can check out our past blog posts on parental status
accommodation here and here.

Update: Recent amendments expressly protect parents who need to miss work because of coronavirus-related school or daycare closures, or to care for family members who may be sick with COVID-19. See our more detailed post on these new rules on covid 19 leaves here.

Can I be fired for taking time off because my child’s school or day care is cancelled due to corona virus?

The duty to reasonably accommodate parents’ legal
obligations to care for their children to the point of undue hardship means
that most people can’t be fired for taking some time off to deal with an unexpected
loss of childcare – especially for young children. But, employees will need to
communicate with their employers about their needs, cooperate in the
accommodation process, and be willing to accept compromises.

However, the Human Rights Code does not protect
employees from legitimate layoffs. If your employer is facing losses because of
coronavirus (or by coincidence) that lead to layoffs, parents can be affected
just like any other worker.

These situations can be complicated, so employees should
consider consulting a human rights lawyer or their union if they encounter
challenges or are unsure of their rights.

Update: Recent amendments expressly protect parents who need to miss work because of coronavirus-related school or daycare closures, or to care for family members who may be sick with COVID-19. See our more detailed post on these new rules on covid 19 leaves here.

Can my employer force me to stay home or lay me off during coronavirus?

Yes. In general, employers can direct employees’ work. This includes telling employees where and when to work. There may be consequences though. If your employer is sending you home without pay or laying you off, or if your working from home means a big pay cut for you, this may amount to dismissal in some cases. But, this will likely depend very much on the circumstances including how long you’re asked to stay at home. As with other reactions to coronavirus, we urge both employers and employees to refrain from making rash decisions. We encourage people navigating unpaid time off or significant pay cuts to consider getting legal advice tailored to their specific circumstances

We note that in some cases, employers may not have a choice.
The duty to keep workplaces safe for employees may require asking employees
with symptoms of COVID-19 to stay home at this time.

For employers who serve vulnerable populations (such as
hospitals, nursing homes, long-term care homes, etc) there may be added
responsibilities to protect the safety of patients or clients. If you work in
these environments, you may also have a professional or public health
obligation to personally take steps to protect the health of your patients or
clients. You may wish to consult your regulatory college, your union if you
have one, or a professional regulation lawyer.

Can the government force employees to stay home if they have COVID-19?

Yes. The government has the power to order any one with a communicable disease to take steps to protect public health. This can include ordering some one with COVID-19 to stay home or take other steps. There are appeal mechanisms if someone is ordered to self-isolate or be in quarantine. However, this is outside of our team’s expertise. If this happens to you, you may want to speak to some one experienced in health law.

Update: A recent order that all non-essential businesses close or work remotely means that many workers have effectively been ordered to stay home from work.

If I have to stay home due to Coronavirus, does my employer have to pay me?

Not necessarily. Again, the Employment Standards Act does not mandate paid sick leave. It does not look like the government is including paid sick leave among its emergency measures at this time. However, your employment contract, collective agreement or workplace policies may entitle you to paid sick days or other paid days off that you can apply to a coronavirus-related absence. If you are unsure about your rights after reviewing your contract, collective agreement or workplace policies, consider calling your union or an employment lawyer for advice.

Can I apply for EI (Employment Insurance)?

Yes. Normally, there’s a waiting period to apply for
Employment Insurance (EI), even for sickness benefits. The Canadian government
is eliminating the waiting period and extending coverage to people in
quarantine. Provided you are otherwise eligible for EI, you can apply for up to
15 weeks of sick benefits. You can find out more here.

People who are not sick with symptoms of COVID-19 or in
self-isolation but are facing job loss or temporary layoffs may be eligible for
regular EI benefits. You can find out more here.

If you become seriously sick and have coverage through work, you may also be eligible for short- or long-term disability coverage. Consult your employment contract or collective agreement and talk to your union, human resources person, or employment lawyer if you have questions about your eligibility.

Update: A new benefit announced by the Federal Government offers faster access to funds for workers, including people who might not otherwise be eligible for EI. This is called the Canada Emergency Response Benefit or CERB. You can find out more here. We’ll do a more detailed post once we have a bit more information about this benefit.

You keep saying “provincially regulated employees”, does that include me?

Most employees in Ontario are provincially regulated. Some
employees are federally regulated because of the industry they work in. Common
examples include bank employees, airline employees, inter-provincial
transportation workers, but these are not exhaustive. If you’re unsure if
you’re federally regulated, your union, your human resources person or an
employment lawyer should be able to help you figure it out.

Federally regulated employees are entitled to a minimum of 5 sick days per year. Federally regulated employees with more than 3 months of service are entitled to 3 paid sick days. As with provincially regulated employees, federally regulated employees may have additional rights or benefits as a result of their employment contract, collective agreement or workplace policies. If you’re unsure what your rights are, please contact an employment lawyer or your union.

Wait, so can I be fired or not?

These leaves are what lawyers call “job protected”. But, that doesn’t guarantee you’ll keep your job. Firstly, employers sometimes break the law deliberately or due to ignorance. Secondly, employees can still be dismissed for serious misconduct or as part of unrelated layoffs. It can be complicated. If you’re laid off permanently or temporarily or fired during the COVID-19 pandemic, you should get legal advice or the advice of your union as soon as possible.

Resources

DISCLAIMER: This blog is for educational and informational purposes only may not be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not guaranteed, and laws may change from time to time. If you would like legal advice or have questions about your particular workplace problems, please contact a lawyer. Click Here to contact Hamilton labour, employment and human rights lawyers Sarah Molyneaux or Roberto Henriquez now. Contacting Molyneaux Law or using this website does not create a lawyer-client relationship. Your use of this website is entirely at your own risk.